RACHEL HAAS, CAROL HAAS, and RICHARD HAAS v. QUEST RECOVERY SERVICES, INC. and STATE OF OHIO

* The Honorable Avern Cohn, United States District Judge for the Eastern District
of Michigan, sitting by designation.
1 The complaint as originally filed named the City of Canton, Ohio, as a defendant.
Plaintiffs, however, dismissed all claims against the City and amended the complaint to
name the State of Ohio as a party defendant.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0202n.06
Filed: March 27, 2006
No. 05-3147
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RACHEL HAAS, CAROL HAAS, and
RICHARD HAAS,
Plaintiffs-Appellants,
v.
QUEST RECOVERY SERVICES, INC. and
STATE OF OHIO,
Defendants-Appellees.
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O N A P P E A L F R O M
THE UNITED STATES
DISTRICT COURT FOR THE
NORTHERN DISTRICT
O F O H I O
O P I N I O N
BEFORE: NORRIS and BATCHELDER, Circuit Judges; and COHN, District
Judge*
AVERN COHN, District Judge. This is a case under the Americans with Disabilities
Act (ADA), 42 U.S.C. § 12101 et seq. Plaintiffs-Appellants Rachel Haas and her parents,
Carol Haas and Richard Haas (collectively referred to as the Haases), filed suit against
Defendants-Appellees Quest Recovery Services, Inc. (Quest) and the State of Ohio, 1
alleging that Rachel Haas suffered discriminatory treatment based upon her physical

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2 Because the district court granted the State of Ohio’s motion to dismiss under
Fed. R. Civ. P. 12(b)(1) and 12(b)(6), the factual background is taken from the first
amended complaint. Benzon v. Morgan Stanley Distrib., Inc., 420 F.3d 598, 609 n.5 (6th
Cir. 2005) (noting that this Court accepts as true all of plaintiff’s well-pleaded allegations
when we review a grant of a motion to dismiss for failure to state a claim).
2
disabilities while she was participating in a drug and alcohol counseling program
administered by Quest and ordered as part of her punishment after she pleaded guilty to
operating a vehicle under the influence of alcohol. The Haases appeal the district court’s
dismissal of their claim against the State of Ohio under Title II of the ADA, 42 U.S.C. §
12132. We affirm.
I. FACTUAL BACKGROUND 2
On September 19, 2002, Rachel Haas (Haas) was operating an all-terrain vehicle in
Louisville, Ohio, while intoxicated. While crossing a road, Haas was hit by a truck and
suffered serious injuries, including fractures to her pelvis and arms, a partially severed
hand, a crushed leg, and other internal injuries. She was hospitalized for several weeks.
During the course of her treatment, her left leg was amputated above the knee, she
received a prosthetic right elbow, and a metal rod was placed in her right arm. She was
prescribed pain medication and a course of physical therapy upon her release from the
hospital.
The local prosecutor charged Haas with driving under the influence of alcohol.
O HIO REV . CODE § 4511.19(A). She pleaded guilty in the Canton, Ohio, municipal court
on February 18, 2003. Prior to her sentencing, she provided the judge with a letter from

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her physical therapist, stating that rehabilitation would take three to six months and that
“[a]ny disruption of this rehabilitation . . . would be very detrimental to her progress.”
The municipal court judge sentenced Haas to 36 days of house arrest and required her to
participate in two six-day driver intervention programs at Quest’s Massillon, Ohio,
facility. The State of Ohio owned the building housing Quest’s facility and leased it
indirectly to Quest.
Haas, who required a wheelchair, reported for her first six-day stay at Quest’s
facility on March 13, 2003. The first amended complaint describes her experience as
follows:
Plaintiff was instructed by a Quest employee upon her arrival to
proceed with her luggage to the sixth floor of the building. When she asked
where the elevator was located, she was told there was none and she would
need to use the stairs. The Quest employee refused to provide any
assistance to her. With her parents’ help, Plaintiff was therefore forced to
“scoot” herself up six (6) flights of stairs. In addition to substantial physical
pain, cramping, and discomfort, Plaintiff also suffered substantial
embarrassment and humiliation as numerous other inmates and Quest staff
members climbed the stairs past her.
Initially, Quest’s staff would only serve her meals in the basement.
Plaintiff was thus required to hop, scoot, and crawl up and down the steps
without any assistance several times a day. Since she could not bring her
wheelchair to the basement, she was forced to hop substantial distances in
order to get her food and reach the table. . . .
Plaintiff’s wheelchair would not fit into the restroom she was
required to use, which was not handicap-accessible. Plaintiff had to sit on
the floor of the co-ed shower in order to bathe herself. . . .
In addition to this situation, Haas allegedly fell down three flights of stairs while in the
facility, displacing the rod in her arm. When her physical therapist wrote another letter

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indicating that she was not cleared for stair climbing, she was allowed to take meals in
her room, though the complaint states that staff “forgot” to deliver food on several
occasions.
Despite a favorable assessment by her counselor, the first amended complaint
alleges that the facility’s director “advised her that her attitude had been unacceptable and
her completion of the program would not be approved.” A hearing was conducted in
municipal court on April 4, 2003, which resulted in an order of confinement in the Stark
County, Ohio, jail for six days beginning April 7, 2003.
II. PROCEDURAL HISTORY
After completing her sentence without further incident, Haas and her parents filed
this lawsuit. The complaint as originally filed listed six counts: (1) handicap
discrimination, (2) rehabilitation act violations, (3) civil rights violations, (4)
negligence/intentional tort, (5) infliction of emotional distress, and (6) loss of consortium.
The Haases abandoned count three (civil rights violation) when they filed the first
amended complaint.
The State of Ohio filed a motion to dismiss arguing that Eleventh Amendment
immunity barred recovery and, in the alternative, the Haases did not state a valid claim for
relief. The district court granted the State’s motion in part, ruling that (1) Title II of the
ADA does not abrogate Ohio’s Eleventh Amendment immunity to the Haases’ ADA
claim, (2) Ohio waived its immunity to the Haases’ Rehabilitation Act claim, and (3) the
Haases failed to state a claim for direct discrimination against the State of Ohio.

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On December 28, 2004, the district court entered an order of settlement, followed
by another order on January 28, 2005, which provided “[n]otwithstanding the foregoing
[settlement and dismissal], this entry shall have no effect upon Plaintiffs’ right to appeal
the Order of September 20, 2004 dismissing the Americans with Disabilities Act claims
. . . on the pleadings.” Quest settled the ADA and Rehabilitation Act claims against it for
an undisclosed sum. The State of Ohio settled a claim under the Rehabilitation Act
premised upon its ownership of the building that housed the Quest facility.
III. ANALYSIS
A. Standard of Review
We review de novo a district court’s grant of a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). Simon v. Pfizer, Inc., 398 F.3d 765, 772 (6th Cir.
2005). A motion under Rule 12(b)(6) is granted when “it is clear that the plaintiff can
prove no set of facts in support of [the] claim that would entitle [the plaintiff] to relief.”
Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995). In deciding a motion under Rule
12(b)(6), the Court accepts all of the allegations as true and construes the complaint
“liberally in favor of the party opposing the motion.” Id. The Court does not accept the
“bare assertion of legal conclusions,” Columbia Nat. Res., Inc. v. Tatum, 58 F.3d 1101,
1109 (6th Cir. 1995), nor does the Court accept “unwarranted factual inferences.”
Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).
The applicability of the Eleventh Amendment to claims against a state under the
ADA is a question of law that we review de novo. Carten v. Kent State Univ., 282 F.3d

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391, 394 (6th Cir. 2002).
B. Whether the Haases Stated a Claim Under Title II of the ADA
The Haases say that they sufficiently pleaded direct discrimination by the State of
Ohio because the Canton, Ohio, municipal court, which is an arm of the Ohio court
system, sentenced Rachel to her treatment program and thus caused her to suffer
discrimination. Additionally, the Haases premise liability on the State of Ohio’s
ownership of the building that housed the Quest facility. The State responds that the
Haases attempted, but failed, to link any direct action of the State with the actions of
Quest, the private facility.
Title II of the ADA provides, in pertinent part:
[N]o qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities or a public entity, or be subjected to
discrimination by any such entity.
42 U.S.C. § 12132.
To state a claim of disability discrimination under Title II of the ADA, a plaintiff
must allege that “(1) she has a disability; (2) she is otherwise qualified; and (3) she is
being excluded from participating in, being denied the benefits of, or being subjected to
discrimination under a program solely because of her disability.” Jones v. City of
Monroe, 341 F.3d 474, 477 (6th Cir. 2003).
The district court found, and the State does not contest, that the Haases satisfied
the first and second elements by alleging that Rachel Haas was a qualified individual with

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a disability. On appeal, the Haases argue, as they did before the district court, that
liability should be imposed under Title II of the ADA as a result of the Canton, Ohio
municipal court’s practice of referring disabled individuals to non-handicap accessible
drug and alcohol treatment facilities. Alternatively, the Haases argue that the State
should be held liable for failing to ensure that the buildings where these activities were
being conducted satisfied handicap accessibility requirements.
The district court astutely observed that the Haases are in effect suing the State of
Ohio in an attempt to sue the municipal court judge. Indeed, the Haases contend on
appeal that the “Canton Municipal Court treated [Rachel] far more severally [sic] than her
non-handicapped counterparts.” The proper inquiry for this line of argument is whether
the Canton Municipal Court judge is protected by judicial immunity.
The Supreme Court has made clear that judicial immunity is overcome only in two
sets of circumstances: “First, a judge is not immune from liability for nonjudicial actions,
i.e., actions not taken in the judge’s judicial capacity. Second, a judge is not immune for
actions, though judicial in nature, taken in the complete absence of all jurisdiction.”
Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Issuing an order is judicial in nature. Bush v.
Rauch, 38 F.3d 842, 847 (6th Cir. 1994). Thus, the Canton Municipal Court judge clearly
was acting both within his jurisdiction and within his judicial capacity when he issued an
order sentencing Haas to two six-day driver intervention programs.
The Haases also argue that “no logical reason exists for cloaking such routine
ministerial acts [as ordering a driver intervention program] with absolute judicial

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immunity.” They argue that the order could have been made by a “court administrator,
departmental chief, or some other non-judicial state officer or employee.” This argument
is of no moment, and the district court did not err in finding that the Canton Municipal
Court judge has judicial immunity for his sentencing decision.
With respect to the Haases’ position that the State of Ohio should be held liable
under Title II of the ADA based on its ownership of the building housing the Quest
facility, they primarily rely upon Johnson v. City of Saline, 151 F.3d 564 (6th Cir. 1998).
In Johnson, this Court held that a public entity that leases or rents its facilities to non-
public entities is subject to Title II of the ADA because it is a landlord. Id. at 571-72.
Here, the district court found that the State of Ohio is subject to liability as a landlord
because an agency of the State, the Ohio Department of Alcohol and Drug Addiction
Services, leased the property housing the Quest facility to the Stark County Alcohol and
Drug Addiction Services Board which, in turn, subleased the facility to Quest. Thus, the
remaining question is whether Quest is a public entity and whether the State of Ohio is
thereby subject to direct liability.
The Johnson court enumerated four factors to identify whether a facility appearing
to have both public and private features is an arm of the state. Those factors include:
(1) Whether the entity is operated with public funds;
(2) Whether the entity’s employees are considered government
employees;
(3) Whether the entity receives significant assistance from the
government by provision of property or equipment; and
(4) Whether the entity is governed by an independent board selected by
members of a private organization or a board elected by the voters or

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appointed by elected officials.
Id. at 572.
In their first amended complaint, the Haases alleged the following:
16. At all times . . . Quest acted as an agent and/or extension of the State
by performing a quasi-governmental function under the ultimate
supervision, direction, and control of the Court and/or State. . . .
38. . . . The court and/or State further subjected Plaintiff to
discrimination by . . . ordering her to be confined in a privately
operated system [Quest].
The district court correctly found that the Haases did not sufficiently plead that the State
of Ohio is responsible for Quest’s alleged wrongdoing. The first amended complaint is
deficient because it does not satisfy our pleading requirements under Johnson for
imposing liability on the State of Ohio.
C. Whether the State of Ohio is Entitled to Eleventh Amendment Immunity
for the Haases’ Claim Under Title II of the ADA
The Eleventh Amendment provides that “[t]he Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” U.S. CONST . AMEND . XI. It is well established that “an unconsenting
State is immune from suits brought in federal courts by her own citizens as well as by
citizens of another state.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984) (internal citation omitted). “[I]n the absence of consent a suit in which the State or
one of its agencies or departments is named as the defendant is proscribed by the

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Eleventh Amendment.” Id. Eleventh Amendment immunity does not, however, apply in
two circumstances: (1) where a state has waived its immunity from suit in federal court,
and (2) where Congress has abrogated the state’s immunity. Thiokol Corp. v. Dep’t of
Treas., State of Mich., Revenue Div., 987 F.2d 376, 381 (6th Cir. 1993). The Haases
argue that Congress abrogated the State of Ohio’s immunity to claims arising under Title
II of the ADA.
In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Supreme Court held that
Congress can abrogate a State’s sovereign immunity when it does so pursuant to a valid
exercise of its power under § 5 of the Fourteenth Amendment. The most recent Supreme
Court case to address Eleventh Amendment Immunity for ADA Title II claims is
Tennessee v. Lane, 541 U.S. 509 (2004). In Lane, the Supreme Court held that Title II of
the ADA is a valid exercise of Congress’s § 5 authority to protect a plaintiff’s due process
right of access to the courts. Id. at 531. The Supreme Court made clear, however, that its
holding in Lane was expressly limited to the question before it: whether Congress had the
power under § 5 of the Fourteenth Amendment to enforce the constitutional right of
access to the courts:
[N]othing in our case law requires us to consider Title II, with its wide
variety of applications, as an undifferentiated whole. Whatever might be
said about Title II’s other applications, the question presented in this case is
not whether Congress can validly subject the States to private suits for
money damages for failing to provide reasonable access to hockey rinks, or
even to voting booths. . . .
Id. at 530-31. Accordingly, the holding in Lane is limited and does not provide us with

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guidance for this case because the circumstances presented in Lane (i.e., access to the
courts) are not present in this case. Thus, we must look to precedent from this circuit to
resolve the question before us.
In Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808 (6th Cir.
2002), a state court failed to provide the plaintiff with adequate hearing assistance during
a child custody case. We held, in an en banc decision, that the Eleventh Amendment
barred claims under Title II of the ADA based upon the Equal Protection Clause but did
not bar such claims sounding in due process. Id. at 812. The Haases condede on appeal,
as they emphasized before the district court, that their claims implicate equal protection
concerns, not those of due process: “This Court should now take this opportunity to hold
that Title II of the ADA has abrogated Eleventh Amendment immunity even with respect
to pure claims of disparate treatment that sound solely in equal protection.”
Despite our holding in Popovich that the Eleventh Amendment bars equal
protection claims under Title II of the ADA, the Haases ask us to clarify our ruling in
light of the Supreme Court’s decision in Nev. Dep’t of Human Res. v. Hibbs, 538 U.S.
721 (2003). In Hibbs, a male state employee sought damages because of alleged
violations of the Family Medical Leave Act (FMLA), 29 U.S.C. § 2612. Id. at 725. The
Supreme Court held that Congress intended the FMLA to protect a right guaranteed by
the Equal Protection Clause – specifically, the right to be free from gender-based
discrimination in the workplace. Id. at 728. The Haases say that because the Supreme
Court in Hibbs determined that Congress validly abrogated Eleventh Amendment

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immunity based on the principles of equal protection, Popovich no longer is persuasive
because Hibbs suggests that Congress may exercise its § 5 authority to adopt legislation
imposing purely equal protection-type requirements upon the states. We find this
position unavailing, however, because constitutional standards relating to gender-based
discrimination (which is what was at issue in Hibbs) are distinguishable from those
relating to discrimination of the disabled. Notably, gender-based discrimination is
entitled to a heightened level of constitutional scrutiny – one that requires a gender-based
classification to serve important governmental objectives and be substantially related to
the achievement of those objectives. Id. at 736. Discrimination on the basis of a
characteristic such as a disability, on the other hand, is entitled only to a “rational basis”
review. Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446 (1985). “States are not
required by the Fourteenth Amendment to make special accommodations for the disabled,
so long as their actions toward such individuals are rational.” Bd. of Trustees of Univ. of
Ala. v. Garrett, 531 U.S. 356, 367 (2001).
In light of the narrow scope of Lane’s holding, which is limited to Title II ADA
claims for the right of access to courts, and in light of this circuit’s precedent that
establishes that the Eleventh Amendment bars equal protection claims under Title II of
the ADA, we find that the district court did not err in holding that the State of Ohio is
entitled to Eleventh Amendment immunity for the Haases’ claim under Title II of the
ADA.
IV. CONCLUSION

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For the foregoing reasons, the decision of the district court is AFFIRMED.

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